WHAT UNIONS ALMOST ALWAYS MISS TARGETING WITH FRIENDLY WHITE HOUSES

History has shown that when there is a union-friendly President in the White House federal sector unions usually want on three things, i.e., 1- new appointees to the FLRA, 2- new appointees to the FSIP, and 3- an order requiring agencies to bargain over 7106(b)(1) subjects.  The first two are inevitable, although they seem to take an unexplainably long period of time. The third one is almost never achieved with unions settling for some sort of vaporous, feel-good, we-will-do-better relationship pact. President Biden, to his credit, has finally ordered bargaining over those topics, although by delaying his appointments to FLRA and FSIP stunted any union permissive topic bargaining clout. But for some reason unions never seem to target a fourth area for change that has as much potential as all the others to improve things, i.e., government-wide regulations, particularly OPM’s. Below is comment on five such regs that union should be working overtime to get OPM to modify.

Federal law states that OPM regulations are binding on the parties.  That means unions can grieve to enforce those favorable to employees and agencies can raise those unfavorable to employees to block any arbitration victories or bargaining gains. Consequently, it seems only logical that unions should be using friendly WH administrations to reshape OPM regulations such as the following to remove the barriers and boost benefits. But there is not a scintilla of evidence that they are.

Retroactive Promotions for Details (5 CFR 335.103(c)(1)(i)) – It is not unusual for a manager to deliberately or unintentionally assign an employee to a higher graded position.  When that happens the employee can be given a temp promotion for the first 120 days he is doing higher graded work, but no longer unless the manager holds a competitive promotion and selects that employee.  So, if a GS-11 employee going out on workers comp leave forces the manager to split the 11’s workload between two GS-9 coworkers, those two can be paid at the 11 level for 120 days. But if the 11 stays out longer than 120 days the employees cannot be paid the higher rate even if the manager still requires them to do the higher graded work.  That is the result of an interpretation of that regulation by a prior OPM leadership that was hostile to unions and employees. Put differently, if the manager fails to do her job of posting the temp promotion for competitive selection but still forces the employees to do the higher graded work, the employees, not the manager, suffer a penalty.

Consequently, unions should move to have that regulation amended to  permanently provide that the employee is to continue to receive the higher rate of pay after 120 days. If OPM is worried supervisors will abuse the concept by non-competitively distributing long-term temporary promotions it can impose mandatory penalties for managers who violate the rule deliberately or once put on notice of a violation.

Temp Promotions Are Not Classifications (5 CFR 511.607) –  In one of their less lucid moments stemming from whipping themselves into a near-religious frenzy of hate against unions the two Trump FLRA appointees had a vision. They looked at the federal job classification regulations and saw that any union effort to seek a retroactive temp promotion for an employee assigned to do higher graded work but not paid the high rate was an effort to reclassify the job itself—and therefore neither negotiable nor grievable. (SBA and AFGE, Local 3841, 70 FLRA 729 (2018)) It did not matter that the union was not asking for a permanent, temporary or even retroactive job reclassification of any kind. Consequently, to moot any continuing impact of these Trumpian hallucinations unions should ask OPM to amend 5 CFR 511.607(a)(2) to make it clear beyond a doubt that disputes over the proper payment of an employee while assigned or detailed to higher graded work is not a classification matter, but grievable/appealable under other procedures. (Or 335)

Highly Subjective Promotion Criteria (5 CFR 300.102(b)) – If an employee files an EEO complaint and meets the prima facie test, which is quite easy to meet, then in almost every case involving a promotion the agency must to provide an explanation why it failed to select that employee that is more than a “contentless and non-specific statement” based on a manager’s “subjective belief” that someone would or would not be the best fit for a job. See Patrick v. Ridge, 394 F.3d 311 (2004). See also, “What Do Selecting Officials Owe BQ Candidates?”.  Consequently, if a White employee is entitled to that quality of an explanation when he is passed over for promotion in favor of an Hispanic man why is he not entitled to the same quality when passed over for another White man? That could be done by adding the following to this regulation words such as, “…and based on a reason that is neither contentless, non-specific, nor a subjective belief.” Alternatively, similar changes could be made to 5 CFR 335.103(b) Requirements 4 or 5.

Appealing Probationary Dismissals (5 CFR 315. 806) – A employee dismissed during a probationary period currently has more than a dozen different routes for appealing the dismissal.  The employee could have appeals before multiple agencies at the same time. OPM could close that loophole by changing this regulation to allow bargaining unit employees to appeal their probationary period dismissals through the negotiated grievance-arbitration route, but only on the grounds that a statute or government-wide regulation was violated. If this was allowed and parties put it into their agreement, it would remove the potential for an employee filing multi-agency challenges, which typically cost the government much more than an arbitration. Given that all non-probationary employees can grieve their statutory and regulatory rights, it seems non-sensical to deny all probationary employees that right.

Falsification Versus Lack of Candor (5 CFR 735.103) – We have no objections to the idea that employees should be punished if they falsify information so long as the agency meets the burden of proof for falsification.  It requires the agency prove that the employee intended to give false information.

But during the Reagan Administration’s hostility toward federal employees its MSPB appointees decided agencies should be allowed to discipline, even remove, employees if the false information was only a mistake or omission, without any evidence of intent. (See Ludlum v Dept. of Justice, 278 F.3d 1280 (2002) for a history of this development.)

It is time for unions to take a run at changing this injustice, and with a President who is a lawyer there should a waiting understanding of the injustice allowing employees to be fired for something less than intended falsification standard. The Office of Government Ethics sets the conduct rules for federal employees and it only prohibited falsification. (See 5 CFR 2435.901-2)  Although it said nothing about lack of candor being a conduct violation, OGE allows agencies to supplement its rules with their own. OPM could intervene by amending the regulation noted above to provide that while agencies may add additional conduct obligations, they may not develop rules which merely lower the burden of proof of a rule specifically provided by the OGE.

Unions have several ways to “motivate” OPM to change its rules to fix these problems. While a word from the White House is the most direct, they can also work through the Congressional committees with OPM oversight, try to generate sympathetic media coverage of these problems, have members solicit their local Congressional reps for support, etc.